The Tax Administration Act (No. 28 of 2011) (hereinafter referred to the TAA), which came into effect on 1 October 2012 was widely criticised by industry experts in that it did not achieve what it was set out to do – balancing SARS’ powers and duties with the rights and obligations of the taxpayers. There are sections in the TAA that arguably infringes upon taxpayers’ Constitutional rights, such as the retrospective implementation of the understatement penalty in Chapter 16. Common complaints from tax practitioners also include SARS not giving appropriate reasons for assessments and letters of findings not being issued within the 90 day intervals as required by section 42 of the TAA.

At the end of the tunnel, there is however a bright light in the form of Judge Bernard Ngoepe who has been appointed as South Africa’s first Tax Ombud in terms of section 14 of the TAA. In his first public appearance, at the South African Institute of Tax Practitioners’ Breakfast with Tax Ombud: Judge Bernard Ngoepe, one of his opening statements was the following:

"I’m there hopefully to be able to put out some fires between SARS and the taxpayers and I value this invitation highly. The Tax Administration Act’s structure is not perfect and satisfactory in many respects, but hopefully with the passage of time, as our wisdom graduates, we’ll be able to panel beat the ship into its proper cause and condition so that the office can better deliver that which it has been mandated to deliver.”

Industry experts also attacked the TAA’s terms of the Tax Ombud’s office, due to fact that SARS employees are seconded to the Tax Ombud office, the office is funded by SARS, and arguably the biggest point of concern, the Tax Ombud doesn’t have any determinative powers. The public should however remember that the Tax Ombud must report to the Minister of Finance, Pravin Gordhan, who was the Commissioner of SARS for over a decade, from 1999 to 2009. During that period, SARS was transformed as an organisation, with nominal revenue collection increasing annually by an average of 7 to 12 per cent. Taxpayers registered for income tax also increased by more than 1.5 million during the period in which Gordhan had the reigns. One can therefore imagine how hard Gordhan must have worked to get SARS up to the level where they are now and that he would not take any complaint regarding SARS lightly.

Ngoepe believes that the annual report to the Minister of Finance and the quarterly reports to SARS will greatly assist in enforcing his recommendations. "The Minister of Finance does not just sit on my report, he has to table it before Parliament, which plays a particular role” Ngoepe notes. He believes that it is not likely that SARS will ignore a recommendation coming from an office established in terms of national legislation. The Tax Ombud also has the power to include in its report to the Minister, the recommendations that were not implemented by SARS.

Ngoepe also places a high regard on the independence of his office. "We have chosen not to be located physically within SARS or its buildings. This physical separation between us and SARS was important to be visible” Ngoepe states.

One can imagine how busy Ngoepe’s office will be with the fifteen business day turnaround time per complaint. The first complaint was already resolved and Ngoepe praised SARS’ willingness to participate in the remediation thereof. In terms of section 16(1) of the TAA, the Tax Ombud may only review taxpayer complaints regarding service, procedural or administrative matters arising from the application of a tax Act by SARS. Section 17 of the said Act further states that the following matters fall beyond the jurisdiction and mandate of the Tax Ombud:

Legislation or tax policy;

SARS policy or practice generally prevailing, other than to the extent that it relates to a service matter or a procedural or administrative matter arising from the application of the provisions of a tax Act by SARS;

A matter subject to objection and appeal under a tax Act, except for an administrative matter relating to such objection and appeal; or

A decision of, proceeding in, or matter before the tax court.

Ngoepe reiterated that the Tax Ombud’s decisions aren’t binding upon SARS in terms of section 20(2) of the TAA. Therefore, if the complainants aren’t satisfied with the Tax Ombud’s decision or outcome, then they retain the right to pursue other channels (such as the Public Protector or courts) without any prejudice.

The only point of concern from a taxpayer’s point of view is the fact that a taxpayer first has to exhaust the internal complaints resolution mechanisms within SARS before the complaint may be reviewed by the Tax Ombud (unless there are compelling circumstances for not doing so). The SAIT however believes that the office of the Tax Ombud will act diligently and objectively when determining if a circumstance is compelling as set out in section 18(5) of the TAA. The above implicates, that a taxpayer would have to go through the call centre or team member, team leader, branch manager, SSMO and only thereafter to the Tax Ombud. The SAIT would like to urge its members to keep record of all the different case numbers of the complaint which will then substantiate that the internal SARS procedures that the complaint went through were met.

Ngoepe requests taxpayers not to burden the office with frivolous or vexatious complaints, but reiterates the merits of each complaint will be considered within parameters. The SAIT would in this regard like to request its members to escalate SARS operational complaints with the institute, before they refer the complaints to the Tax Ombud. The technical department at the SAIT, headed by Professor Sharon Smulders, has a high success rate in resolving operational issues experienced by the public with SARS. Judge Ngoepe also stated that the Tax Ombud’s office will be open for meetings with controlling bodies to discuss operational issues emerging from consultation with members on SARS’ operations.

Section 259(2) of the TAA has the effect that the Tax Ombud may only review matters that arose on or after 1 October 2012, unless the Minister of Finance requests him to review an older matter. At the moment it is unclear as to how the Minister will be notified of matters that arose before 1 October 2012.

How to lodge a complaint

According to the Office of the Tax Ombud’s Guide for Complaints, an aggrieved taxpayer must follow the following procedures in order to lodge a complaint:

Obtaining a complaint form – contact the office of the Tax Ombud by telephone, fax or email to request that a copy of the complaints’ registration form be faxed, emailed or posted to you.

Completing the form – take time to read through the form and gather the necessary information before completing it.

Returning the form - attach all supporting documentation for your complaint. For example, any correspondence received or sent relating to the complaint, call reference numbers, and the relevant contact details of the SARS Officials with whom you dealt.

Signatures – all complaint forms must be signed and dated. If the form does not allow you to relate your complaint fully, use extra paper which must be attached to your complaint form. Unsigned forms will not be accepted by the OTO.

Taxpayers can also visit the Tax Ombud’s office for an interview or a consultation, but the Ombud reiterates that taxpayers should write first and ask for an interview in the letter.

In the guide, the Tax Ombud reiterates that if a taxpayer is unsure as to whether or not his/her complaint falls within the Ombud’s mandate, or if a taxpayer is unable to write his/her complaint, that he/she should call the office. Trained professional staff will then attend to the call and will advise accordingly.

Concluding thoughts

The "rights scale” may just, with the introduction of the Tax Ombud, be tipping over in favour of taxpayer rights. The effectiveness of the Tax Ombud can only be measured over time, but it would be hard to believe that Pravin Gordhan, who most people see as the father of SARS, won’t pressure SARS to implement the necessary recommendations.

The SAIT would like to commend the National Treasury on this initiative and believes that Judge Bernard Ngoepe, together with his team, are more than capable in making appropriate recommendations to address service, procedural and administrative failures by SARS.

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